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ELCPartially AllowedNot stated in the excerpt· [2024] KEELC 6940 (KLR)

Ng’ang’a v Kajiado Land Disputes Tribunal & 2 others (Environment & Land Petition 2 of 2021) [2024] KEELC 6940 (KLR)

Environment and Land Court
17 October 2024
LKL. Komingoi
1,131 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kajiado land owner who bought property in 1989 lost his bid for a temporary injunction because the land is now registered in other buyers' names.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 20th May 2022 in a Petition at Kajiado, brought under Rules 5, 18 and 19 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013. The Petitioner sought temporary injunctions restraining the 3rd Respondent from selling, subdividing or interfering with Kajiado/Kaputiei North/1034 and from inhibiting the Petitioner's access to it. The Petitioner asserted he bought the property in 1989 and obtained a title in 1991; that the 3rd Respondent later litigated a boundary dispute, and using forged documents re-registered the property in his name, subdivided and sold parts to the 4th to 6th Respondents, for which he was convicted of fraud and forgery; and that goons obstructed the Petitioner's access. The Respondents did not enter appearance. Applying Giella v Cassman Brown and Mrao Ltd on prima facie cases, the court held that the parcels are now registered in the names of the 4th to 6th Respondents, who may have been unaware of the Petitioner's interest, so no prima facie case with a probability of success was established, and declined the injunctions. The court granted leave to amend the Petition to add the 4th to 7th Respondents (including the Land Registrar Kajiado). The Motion succeeded only in respect of the spent Prayer No. 1; costs were ordered to abide the outcome of the Petition.

Key legal issues

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01

Whether the applicant met the Giella threshold for a temporary injunction

Holding

No prima facie case established because the suit parcels are registered in the names of the 4th to 6th Respondents, who may have been bona fide purchasers unaware of the Petitioner's interest

Reasoning

The court applied Giella v Cassman Brown and Mrao Ltd on the definition of a prima facie case. Noting that the 4th to 6th Respondents bought their parcels from the 3rd Respondent and may not have been aware of the Petitioner's interest, and that the parcels are registered in their names, the court found the applicant's claim would not probably succeed at trial and declined the injunction.

p. 3
02

Whether the Petition should be amended to include the 4th to 7th Respondents

Holding

Amendment allowed as necessary given the property had been transferred to the 4th to 6th Respondents and the 7th Respondent is the Land Registrar Kajiado

Reasoning

Since the suit property had been transferred to the 4th to 6th Respondents and the 7th Respondent (Land Registrar Kajiado) is relevant to the registration dispute, the court found it necessary for the Petition to include those parties and granted leave to amend.

p. 3

Legal principles established

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  • A prima facie case in a civil application is one in which, on the material presented, a tribunal properly directing itself would conclude there exists a right apparently infringed by the opposite party so as to call for an explanation

Court orders

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  1. 1.Prayer to amend the Petition to include the 4th to 7th Respondents granted
  2. 2.Temporary injunction declined/not granted at this stage
  3. 3.Costs to abide the outcome of the Petition

Authorities

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Legislation

  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 5, 18, 19
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (5)

  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • American Cyanamid Co. vs Ethicom Limited
    (1975) A AER 504
  • Chebii kipkoech vs Barnabas Tuitoek Bargoria & Another
    [2019] eKLR
  • Paul Gitonga Wanjau vs Gathuthis Tea Factory Co. Ltd & 2 others
    [2016] eKLR
  • Mrao Ltd & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, Rules 5, 18 and 19

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ng’ang’a v Kajiado Land Disputes Tribunal & 2 others (Environment & Land Petition 2 of 2021) [2024] KEELC 6940 (KLR)", Case Analysis (2024). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6940/eng@2024-10-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.